October 8 is a fine day to reflect on American heroism. Eddie Rickenbacker was born on October 8, 1890. He became America’s ace fighter-pilot in World War I, with 26 aerial victories. Rickenbacker won the Congressional Medal of Honor. The French gave him the Croix de Guerre. Rickenbacker was also a race-car driver. He later headed Eastern Airlines. Ninety-six years ago on this selfsame date, Alvin York led an attack on a German machine gun nest. He killed 28 enemy soldiers and captured 132. He, too, earned the Congressional Medal of Honor and the Croix de Guerre, along with many other honors. York had to struggle with his strong religious belief in pacifism before he could bring himself to kill for his country. Good thing he did, as he was a keen shot and saved many American lives. He was a corporal at the time of his amazing act of bravery, but was forever known by the rank he attained at the end of the war: Sgt. York. In 1942, Gary Cooper won an Academy Award playing Sgt. York. There is a statue of Sgt. York on the grounds of the Tennessee Capitol building in Nashville.
Without people like Rickenbacker and York, it is not clear that we would have the freedom to haggle over fine points of law. So today we will discuss a mixed bag of a case with gratitude for the good points and restraint on the not-so-good. We are in a no-snark zone.
In Centeno v. Bayer Healthcare Pharmaceuticals, 2014 U.S. Dist. LEXIS 136234 (S.D. Ill. September 26, 2014), the plaintiff filed a products liability case alleging that she suffered pain from a contraceptive device called Mirena. The plaintiff was a citizen of California and the defendant was a corporation organized under the laws of Delaware and having its principal place of business in New Jersey. We are not sure how this case ended up in federal court in Southern Illinois. We’ll just leave it at this: that little nook and cranny of our great country seems to have a magnetic effect on litigation. In any event, the defendant filed a motion to dismiss the Centeno complaint, and choice of law was the preliminary issue. The court had little difficulty determining that the jurisdiction with the most significant relationship to the case was California, where the device was inserted and the injury allegedly sustained.
California law looks like it will help the defendant, because California does not recognize a cause of action for failure to test, which is one of the claims asserted by the plaintiff. But the plaintiff sidesteps that point, and the court acquiesces in that side-step, by viewing failure to test as a factual allegation supporting a broader claim of negligence. We’ve seen that sort of thing before. We don’t like it, but there it is. (Imagine us saying that through gritted teeth.)
We are a little happier with the court’s treatment of the claim for manufacturing defect. Again, it is something we have seen before. The plaintiff simply alleged manufacturing defect in broad terms, but never offered facts that identify or explain how the product either deviated from the defendant’s intended result or design or how the particular product implanted in the plaintiff deviated from other seemingly identical models. The court dismissed the manufacturing defect claims. Cases such as Centeno show why manufacturing defect claims are seldom a cause for concern.
But Centeno also shows why information-based claims (failure to warn or fraud) can be a cause for worry. Those claims are not so easily sent packing, and they occasionally gain traction with juries. The plaintiff in Centeno alleged that Mirena’s labeling did not contain an adequate warning “of the risk of migration of the product post-insertion, uterine perforation post-insertion or the possibility that the device complications such as migration and perforation may cause abscesses, infections, require surgery for removal and/or may necessitate hysterectomy, oophorectomy and other complications.” We cannot tell from the opinion whether any of those things happened here, or whether the prescribing doctor would have done anything differently with an enhanced warning. Be that as it may, the court concluded that the allegations were sufficient to survive a motion to dismiss. (When we think about the risk of migration, what we often find ourselves worrying about is litigation migrating to Southern Illinois. But we digress.)
The fraud-based claims are measured against the particularity requirement under Fed. R. Civ. P. 9(b). To our jaded eyes the court did not seem especially particular, as it thought it enough for the plaintiff to allege things along the lines of how the defendant “made representations regarding Mirena in December 2009 in their ‘Mirena Simple Style Statements Program,’” and that there were “misrepresentations regarding Mirena’s propensity to cause serious physical harm.” We suppose that if the complaint is to be graded on a curve then such allegations earn what used to be called in the old days a gentleman’s C. But it still seems like thin gruel.
Under California law, prescription drug manufacturers may not be held strictly liable for design defects. Consequently, the strict liability claims were dismissed. But the court observed that the defendant might be liable for design defect claims sounding in negligence, and invited the plaintiff to amend her complaint to assert a design defect claim sounding in negligence. At this point, we are reminded of the old Rumpole of the Bailey television series, where the actor who played Rumpole, Leo McKern (who seemed eminently British but was actually Australian; he was also the villain in the Beatles’ 1965 Help movie), would sarcastically thank His Lordship for being so helpful to Rumpole’s opponent. What’s that you say? That the shift from strict liability to negligence is perfectly obvious, and it does not matter if the judge mentions it? We might agree, except that not so long ago we were in a case where the court dismissed the strict liability design defect theory, the plaintiff lawyer never amended to add a negligence theory, and the case ended up so weak and wobbly that it settled for an amount hardly greater than our annual cable bill. (Not such a trivial amount, but still ….)
The Centeno court’s treatment of the inevitable warranty claims is wholly satisfactory. Under California law, privity between the patient and the manufacturer of a pharmaceutical product is a necessary component of breach of implied warranty claims. It did not exist here, so farewell to the implied warranty claim. The court had to burn a few more calories disposing of the express warranty claim, but not too many. The plaintiff’s conclusory allegations did not sufficiently state a claim for express warranty under California law. Further, there was no allegation of reliance, perhaps because there wasn’t any. There usually isn’t.
Pretty much everything about the Centeno case strikes us as usual. There’s nothing heroic about it. And nothing tragic, either.